From 1 December 2018, every person facing court for an offence of Drive with Mid Range PCA will be subject to mandatory interlock orders, unless they are ordered by the court to be exempt.

Under the new changes, a person who is convicted of an offence of Drive with Mid Range PCA will be disqualified for between 3 and 6 months and required to have an interlock device fitted in their car for 12 months.

For some people, this will be better than the previous 6 – 12 month disqualification period. However, for others, only driving a vehicle with an interlock device installed may cause problems. An application can be made to the court to be exempted from the requirements. The application must be made on the date of sentence and can only be granted in certain circumstances which include medical reasons, no access to a vehicle or severe hardship.

Mandatory interlock orders are already in place for anyone who has a previous drink driving conviction within 5 years, as well as first offence High Range PCA offences. The mandatory interlock scheme requires courts to make certain orders when an offender is convicted for certain offences. Typically, the court will order that:

The offender be disqualified from driving for a period of time;

The offender then have an interlock device fitted in a car for a further period of time, unless they are exempt; and

The offender be subject to additional penalties or punishments such as fines, conditional release orders, community corrections orders, intensive corrections orders or gaol.

A person subject to mandatory interlock orders can only drive a car with a device installed for the period specified by the court, which typically ranges between 1-4 years. The cost is approximately $2,200 per year to have the device fitted and maintained by an approved organisation and lease the device itself.

If an offender does not get an interlock device installed they will be disqualified from driving for 5 years.

Increased Fines and Traffic Infringements

From 20 May 2019 the maximum penalty for offences of Drive with illicit drug present in blood, Special Range, Novice Range and Low Range PCA is to increase from $1,100 to $2,200.

The maximum penalty for an offence of Drive with Mid Range PCA will increase from $2,200 and/or 9 months imprisonment to $3,300 and/or 9 months imprisonment.

A person may also be issued with a traffic infringement, rather than a court attendance notice for these offences. This means that a person who will have previously been required to attend court, for a Low Range PCA for example, may be given a traffic infringement and immediately suspended from driving for 3 months rather than being given a court date. A person can appeal the immediate licence suspension, or make a court election.

Immediate Licence Suspensions

The NSW Parliament have recently passed legislation which significantly changes the way in which police can deal with those charged with certain drink driving offences.

Until 20 May 2019, a person charged with an offence of Drive with Low Range PCA is issued with a court attendance notice and is allowed to keep their licence until their court date. If the court were to impose a non-conviction order (a section 10 dismissal or Conditional Release Order without conviction), the person would not lose their licence at all.

This is not the case for Mid Range PCA or other more serious drink driving offences. Police will almost always issue anyone who they charge with a Mid Range, High Range or Drive Under the Influence of Alcohol a court attendance notice and an immediate notice of suspension. This means the person is suspended from driving from the moment they are charged until their matter has been resolved by a court and/or the end of any court imposed disqualification.

The police power to issue an immediate notice of suspension will soon extend to Low Range Offences. Previously, it did not. The police will also have the power to issue a traffic infringement, rather than a court attendance notice for this offence.

As of 20 May 2019, the police power to issue an immediate notice of suspension to a person will extend to people charged with offences of Drive with Low Range PCA, Special Range PCA and Novice Range PCA. Anyone charged with these offences may lose their licence on the spot, regardless of any defence they may have or their need for a licence.

This means that a person who has been driving for 40 years, with minimal traffic record and no other criminal history may lose their licence on the spot for registering a reading of 0.050 – 0.079. In some circumstances, the difference between a low range reading and being under the legal limit may be a difference of 10 or 15 minutes or a few mouthfuls of alcohol. Regardless, if police give this person an immediate notice of suspension, they won’t be able to drive unless a court imposes a non-conviction, or if they successfully make an appeal to the local court to revoke the immediate licence suspension.

A first court date is typically 4-6 weeks after the offence. An appeal to the Local Court typically takes 2 or more weeks to be heard and longer if the person is required to, or decides to complete, a traffic offender program. In this time a person may be unable to work, take their children to school or care for sick relatives. The consequences can be catastrophic and can include loss of employment, income, ability to care for someone and in some cases a home.

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Trudie combines her impressive skills in advocacy and legal analysis with a focus on her client's interests and wellbeing. Her experience working for senior barristers prior to starting at Armstrong Legal gives her a unique insight into criminal advocacy and practice.
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